Contempt by an Advocate, and the Two Jurisdictions That Bite
Chapter Fifty-Five
Syllabus topic 4.1 The Contempt Law and Practice; 4.2 Bar Bench relations
Pages 298 to 303 of 355
In one line
One outburst can be a contempt and a professional misconduct at the same time, tried by two different bodies under two different Acts, and neither excludes the other.
In exam wording: conduct by an advocate may simultaneously constitute criminal contempt under section 2(c) of the Contempt of Courts Act 1971, punishable by the court, and professional misconduct under section 35 of the Advocates Act 1961, punishable by the disciplinary committee of a Bar Council, the two jurisdictions being distinct in source, forum and purpose.
The two jurisdictions
| Contempt | Professional misconduct | |
|---|---|---|
| Source | Articles 129 and 215, and the Contempt of Courts Act 1971 | Advocates Act 1961, sections 35 and 36 |
| Applies to | anybody | only an advocate |
| Forum | the court | the disciplinary committee of a Bar Council |
| Who may start it | the court suo motu, the Advocate-General, or a person with his written consent; a reference for a subordinate court | a State Bar Council on a complaint or otherwise, having reason to believe |
| Punishment | simple imprisonment up to six months, fine up to two thousand rupees, or both, section 12 | reprimand, suspension, removal from the roll, section 35(3) |
| Purpose | protecting the administration of justice | fitness to remain in the profession |
| Appeal | section 19 of the Contempt Act | sections 37 and 38 of the Advocates Act |
| Limitation | one year to initiate, section 20 | one year to conclude before transfer, section 36B |
Neither proceeding bars the other. They are not alternatives, they do not attract any bar of double jeopardy as between themselves, and the same facts may produce a fine from the court and a suspension from the Bar Council.
The boundary: what a court may not do
The court's power over the advocate stops where the Bar Council's begins, and the case is Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895, (1998) 4 SCC 409, decided 17 April 1998 by a Constitution Bench, judgment by Dr A.S. Anand J, which is worked in chapter [What the Supreme Court May Not Do: Supreme Court Bar Association and the Limits of Article 142].
Held. The Supreme Court cannot, while punishing an advocate for contempt, debar him from practice by suspending his licence under Article 129 read with Article 142, because the disciplinary jurisdiction is conferred by the Advocates Act on the Bar Councils, and while making statutory authorities perform their duties is unexceptionable, it is not permissible for the Court to "take over" the role of the statutory bodies and "perform" their functions.
That decision overtook the punishment imposed in In Re: Vinay Chandra Mishra, (1995) 2 SCC 584, where an advocate convicted of criminal contempt for trying to threaten, overawe and overbear the court by using insulting, disrespectful and threatening language had been sentenced to six weeks' simple imprisonment suspended for four years and suspended from practice for three years. The conviction stands; that direction does not.
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